- Unreported Judgment
SUPREME COURT OF QUEENSLAND
Attorney-General for the State of Queensland v Jackway  QSC 261
ATTORNEY-GENERAL FOR THE STATE OF QUEENSLAND
DOUGLAS BRIAN JACKWAY
BS No 7422 of 2011
22 October 2019
8 October 2019
The Court affirms the decision of Acting Justice O’Brien made on 28 February 2012 that the respondent, Douglas Brian Jackway, is a serious danger to the community in the absence of an order pursuant to Division 3, Part 2 of the Dangerous Prisoners (Sexual Offenders) Act 2003 and orders that:
CRIMINAL LAW – SENTENCE – SENTENCING ORDERS – ORDERS AND DECLARATIONS RELATING TO SERIOUS OR VIOLENT OFFENDERS OR DANGEROUS SEXUAL OFFENDERS – DANGEROUS SEXUAL OFFENDER – GENERALLY – where the respondent is detained under a Continuing Detention Order under the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld) – where the applicant applied for the order to be reaffirmed under section 30 of the Act – where the reporting psychiatrists opined that if the respondent were released on a supervision order there would be a moderate risk of reoffending if the respondent fully complied with the conditions of the supervision order – where prior to the hearing date, the respondent tested positive to Buprenorphine and had a threatening incident with a medical practitioner – whether the respondent is a serious danger to the community in the absence of a Division 3 order – whether the adequate protection of the community can be ensured by the release of the respondent into the community – whether the proposed conditions of the Supervision Order manage the current risks – whether the respondent should remain under the Continuing Detention Order under the Act
Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld), s 27, s 30
A-G (Qld) v Jackway  QSC 26, cited
A-G (Qld) v Jackway  QSC 74, cited
Attorney General for the State of Queensland v DJ, unreported, O’Brien AJ, SC No 7422 of 2011, 28 February 2012, cited
Attorney-General (Qld) v Jackway  QSC 67, cited
Attorney-General v Jackway  QSC 137, cited
R v JJ  QCA 153, cited
Turnbull v Attorney-General for the State of Queensland  QCA 54, considered
J Rolls for the applicant
J Robson for the respondent
Crown Law for the applicant
Legal Aid Queensland for the respondent
On 28 February 2012 the respondent, Douglas Brian Jackway, was detained in custody for an indefinite term for care, control and treatment pursuant to an order under Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (the Act), O’Brien AJ having been satisfied that the respondent was a serious danger to the community in the absence of a Division 3 Order. That decision was subsequently affirmed by Daubney J on 20 December 2013, by Mullins J on 9 February 2015, by the Chief Justice on 7 April 2016, by Brown J on 22 May 2017 and by Crow J on 5 June 2018.
The applicant, the Attorney-General, has now applied for a review of the continuing detention order pursuant to s 27 of the Act. The review process is set out in s 30 Part 3 of the Act:
“30 Review Hearing
This section applies if, on the hearing of a review under section 27 or 28 and having regard to the required matters, the court affirms a decision that the prisoner is a serious danger to the community in the absence of a division 3 order.
On the hearing of the review, the court may affirm the decision only if it is satisfied—
by acceptable, cogent evidence; and
to a high degree of probability;
that the evidence is of sufficient weight to affirm the decision.
If the court affirms the decision, the court may order that the prisoner—
continue to be subject to the continuing detention order; or
be released from custody subject to a supervision order.
In deciding whether to make an order under subsection (3) (a) or (b)-
the paramount consideration is to be the need to ensure adequate protection of the community; and
the court must consider whether—
- adequate protection of the community can be reasonably and practicably managed by a supervision order; and
- requirements under section 16 can be reasonably and practicably managed by corrective services officers.
If the court does not make the order under subsection (3) (a), the court must rescind the continuing detention order.
In this section—
"required matters" means all of the following—
the matters mentioned in section 13 (4);
any report produced under section 28A.”
Accordingly, there is a two stage process mandated by the Act:
- The court must be satisfied by acceptable cogent evidence that the decision which has previously been made that the prisoner is a serious danger to the community ought to be affirmed; and
- The court then has a discretion where the respondent should continue to be subject to the continuing detention order or be released from custody subject to a supervision order, having regard to the requirements of s 16 of the Act that the paramount consideration is the need to ensure the adequate protection of the community.
In order to determine whether the existing order should be affirmed the essential issue is whether the prisoner is now a serious danger to the community. This determination must be made on the evidence that is presented at the review hearing. There is no doubt that the nature of a review hearing is such that the extent of the danger that a respondent may present between the initial hearing, which gave rise to the Division 3 order, and review may in fact be different. As Counsel for the applicant submits:
“it is a finding that the respondent “is an unacceptable risk in the absence of an order under Division 3 which is affirmed, not the reasons and the evidence that caused that original finding to be made. It is clear that the nature and extent of the risk can alter through time and with a prisoner’s participation in treatment programs and other rehabilitation programs.”
A serious sexual offence is defined by the Act and means an offence of a sexual nature involving violence or against children. The risk is of a commission of a serious sexual offence, not just any offence and relates to the possibility, chance or likelihood of the commission of such an offence. The applicant is also required to establish not simply that there is a risk but that that there is an unacceptable risk. The determination of that question clearly involves the balancing of competing considerations. As has been previously noted in a number of decisions, an unacceptable risk recognises that invariably some risk can be acceptable consistently with the adequate protection of the community. In order to determine whether a risk is unacceptable, one must take into account the nature of the risk and the likelihood of it occurring, together with the consequences of such a likelihood.
The object of the Act is to ensure the adequate protection of the community which clearly cannot mean that the purpose of the legislation is to guarantee the safety and protection of the community, otherwise any risk would be deemed unacceptable.
There can be no doubt that if the Attorney-General seeks a continuing detention order, the onus is on the applicant to establish that that is the appropriate order. Accordingly, for a continuing detention order to be made, the applicant must be able to establish that the community will not be adequately protected by a supervision order.
The respondent is currently 42 years of age and apart from three months in 2003 to 2004 he has been in custody since he was 18 years of age. His lengthy criminal history, including sexual offending, commenced at the age of 14 when he raped a female child in 1991. He pleaded guilty in the District Court Gladstone in December 1995 to one count of taking a child under the age of 16 for immoral purposes with a circumstance of aggravation; three counts of indecent dealing with a child under 12; two counts of attempted carnal knowledge by anal intercourse of a child under 12; and one count of unlawful use of a motor vehicle and assault occasioning bodily harm.
The respondent was intoxicated after a falling out with his family and approached three young boys who were riding bicycles. One of the boys was punched and forced into the respondent’s vehicle. He then took him to some mangroves where he stripped and assaulted him, including handling the boy’s genitals, licking and kissing him, inserting his finger into the boy’s anus, forcing his penis into the boy’s mouth and raping him anally. He threatened physical violence during the assault. He was sentenced to eight years’ imprisonment and was not released until 2003.
Three months after his release he was returned to custody on remand in January 2004 for stealing a motor vehicle, dangerous driving, stealing and wilful damage. He was then sentenced in 2005 to seven and a half years’ imprisonment in the District Court at Maroochydore following a trial, where he was convicted of the rape of his sister in 1991 when she was around nine or ten years old and also sentenced for the 2004 offences. The period of imprisonment was subsequently varied on appeal to seven years. In the decision of R v JJ, Macpherson JA also referred to some of the respondent’s earlier offending:
“He has an extensive history of prior offending starting as a child in 1992. Most involved property offences such as breaking, entering and stealing, and unlawful use of vehicles; but in 1994 he was convicted of aggravated assault on a child and there are two recorded convictions for possession of a weapon or replica. It was, however his conviction in April 1995 in the District Court at Gladstone at the age of 18 that led to the earliest of several psychiatric diagnoses carried out between 1995 and 2005.
Since then he has been convicted and sentenced for offences committed whilst in prison, such as wilful damage and assaulting another prisoner. He has also been recorded making a threat to kill his sister the complainant for her part in his conviction in 2004.”
History of previous reviews
At the first review hearing, Daubney J confirmed the detention order and noted the concern expressed by both psychiatrists during the course of that review that a relapse by the respondent into drug and alcohol use would catapult the respondent into a high risk category for sexual offending. He noted that there had been some improvements in his situation since he was first made the subject of a detention order but overall was not satisfied that he had yet reached the stage where he was sufficiently able to manage the risk of exposure to drugs and alcohol and otherwise manage his violent behaviours. His Honour was also not satisfied that the respondent had, as yet, acquired the personal skills to ensure ongoing abstinence from drug and alcohol which presented as the trigger for presenting as a high risk of offending.
At the next review in December 2014, Mullins J noted, not only the potential disinhibition through alcohol and drugs when dealing with stress, but also that the respondent had a personality disorder and impulsive behaviour. She considered that the consequences of any disinhibition in combination with anger and stress would be significant compulsive behaviours.
At the review in February 2016, Chief Justice Holmes noted the respondent’s deprived background and institutionalisation as well as the length of time between the offending behaviour and the review. However, her Honour could not be satisfied that the respondent had the ability to control his impulsive behaviours. She noted that he had improved by participating in courses and receiving psychological assistance from the psychologist Mr Smith however, it was significant that he had an inability to control his impulses which has resulted in him in absconding and/or using drugs. She noted that a sequence of events of the use of drugs and the inability to control his impulses could occur quickly and without sufficient warning to enable Corrective Services to respond. Her Honour was not satisfied that the respondent could be managed by a supervision regime. Her Honour considered that the risk which was most pressing was the respondent’s inability to control his impulsivity and responses to emotional stressors and that when that was combined with his anti-social personality disorder, his offending could escalate rapidly if it was combined with drugs or alcohol.
The matter was then reviewed before Brown J in April 2017, and the evidence of Drs Aboud and Grant was that they were not confident that the respondent would comply with a supervision order and that a serious offence could be committed before it was detected, given that his behaviour could deteriorate very quickly, particularly if substances were involved. Significantly, at that review, the psychiatric evidence was that the respondent needed to demonstrate he could control his impulsivity for 12 months whilst in custody, which would then provide some evidence that he might be able to manage in the community. Her Honour took into account the fact that, whilst there had been a reduction in the violations, he had still taken drugs and had responded with threats of violence when he was threatened. Overall, her Honour concluded that the respondent’s personality disorder had not sufficiently matured and noted in particular his impulsivity and vulnerability to alcohol and drug use.
The matter was then reviewed before Crow J in April 2018 who considered that given the respondent had been incarcerated for a long period of time, he was not only institutionalised but had an anti-social personality disorder together with psychopathy which caused difficulties in behavioural control. However, it was noted that he had undertaken therapy and had taken part in programs. Once again, the psychiatric evidence was that if he was able to undergo 12 months of good and controlled behaviour, then that would demonstrate that he might be able to be released subject to a supervision order. That hearing was re-opened in June 2018 when further evidence was adduced. In particular, on 17 May 2018, the respondent had tested positive to a synthetic opioid which meant that the respondent was no longer in a position to oppose a continuing detention order. Accordingly, the detention order was affirmed.
Events in prison
The affidavit of Paula May sworn 3 April 2019 sets out the respondent’s history in custody from the last review until April 2019. Mr Jackway was transferred from the Brisbane Correctional Centre on 4 June 2018 to the Capricornia Correctional Centre.
The Integrated Offender Management System (IOMS) records the following incidents:
On 10 August 2018, a prisoner was assaulted with the respondent identified as one of the main offenders. It was noted to be a drug debt and although the matter was referred for investigation, no breach was initiated.
On 25 October 2018, the respondent was verbally abusive towards Queensland Health staff, indicating that if he did not get his meds, he would swallow a battery in protest, which he then appeared to do.
On 1 January 2019 the respondent was agitated and stated he intended to punch another inmate. That attempt was able to be diffused.
On 1 March 2019 the respondent was observed passing a white pill to another prisoner, who was informed that one of his medications would cease given that he was caught palming his medication. He then became verbally abusive to the staff member.
On 12 March 2019, once again, the respondent was verbally abusive to a prison officer.
The review of the continuing detention order was listed for hearing on 15 July 2019. However the further affidavit of Paula May sworn 2 September 2019 outlines that on 3 July 2019 the respondent was directed to submit a urine analysis test which returned a result indicating it was presumptive positive to Buprenorphine. This was subsequently confirmed as a positive result. The respondent’s medical records were checked and it is clear that he has not been prescribed that medication.
The review hearing was adjourned to allow further reports to be obtained from the psychiatrists.
It was subsequently ascertained from a review of the respondent’s Health Records that there had also been a verbally aggressive incident with a locum medical practitioner in the Health Centre on 13 June 2019. This will be referred to in greater detail by the psychiatrists in their evidence to the Court.
Programs completed whilst in custody
The respondent had completed the preparatory sexual offender program and the high intensity sexual offender program (HISOP) prior to the first annual review in December 2013. By the time of the next review in February 2015, the respondent had completed the transitions program but not a proposed substance abuse course (Pathways program). It was noted in that review that in the previous 12 months the respondent had been involved in ten incidents and breaches which included threats to assault officers, use of threatening language and causing damage to his cell.
Dr Grant in his report of 24 November 2014 for one of the earlier reviews stated it would be important for the respondent to complete the Pathways program. The respondent then completed the Pathways program between August and December 2015.
The evidence of the treating psychologists
The respondent has also engaged in recommended individual psychological therapy with psychologist Nick Smith from 2012 to late 2017, with Dr Lars Madsen from early 2018 until mid-2019 and Dr Sam Minge on 4 occasions fortnightly from 20 August 2019 to 1 October 2019. Both Dr Madsen and Dr Minge provided reports to the court and gave oral evidence. The information in both these reports was referred to by both of the assessing psychiatrists in their evidence to the court.
Evidence of Dr Minge
Dr Minge confirmed that Mr Jackway had strong anti-social personality features and was institutionalised. Dr Minge stated that Mr Jackway says that he functions well in the custodial environment because he understands it and has confidence in his ability to negotiate a prison environment. Dr Minge also said that there is a passivity in the way that he present which was common to people who had been in prison for a long time. He also considers Mr Jackway is ambivalent about his prospects in the community and is not sure how he would go, which he considers to be a realistic conclusion.
Whilst this therapeutic relationship was in the early days, he considered that a rapport was developing in terms of a professional relationship. He confirmed that the respondent had told him that he would not know what he really would do in the community “besides collect a disability pension and use drugs”. He stated that Mr Jackway said that he enjoys using drugs and that he imagines that he will continue to use them into the future and that he had a preference for heroin. On checking his notes, Dr Minge stated at the words that Mr Jackway had used were “not going to stop getting stoned.”
Dr Minge also confirmed that Mr Jackway had said that he acknowledged the likelihood of “returning to an anti-social lifestyle”. He also referred to the fact he had a preference to get onto the Buprenorphine program and was sceptical about his prospects of getting meaningful employment. The Buprenorphine program is a controlled program whereby prescription medication would be used treat Mr Jackway’s opioid addiction.
Evidence and Reports of Dr Lars Madsen, Forensic and Clinical Psychologist dated 9 April 2019 and 19 September 2019
Dr Madsen has been providing treatment since 9 October 2017. Dr Madsen noted that there had been 100 adverse incidents in his institutional behaviour, the majority being for some form of violence. However his recent institutional history suggests a slowdown of those behaviours and there have only been five adverse incidents. Since the progress report of 9 April 2019, Dr Madsen has met with the respondent on four occasions at the Capricornia Correctional Centre. At the time he prepared his Report of 19 September 2019 he was not aware of the incident with the locum doctor on 13 June 2019.
Dr Madsen considered that the respondent was over confident about his chances of being able to adjust to the day-to-day challenges of living in the community given the long period of time he has been in custody, particularly cooking, budgeting, banking, and public transport. He considered however that such a mindset was to be expected given his personality.
In relation to the issue of substance abuse, Dr Madsen stated that it was his impression that the respondent is currently frequently exposed to illicit substance use and has used at different times including recently and has also done so previously prior to the resolution of the DPSOA review in 2018. Dr Madsen considered there are a number of factors relevant to this problem. Firstly the prison context, particularly the undefined custodial date which would reduce his willingness to desist from acting on urges to use drugs. Furthermore, the respondent has chronic back and joint pain and until recently has been on various medication for this.
Dr Madsen noted however that this medication has been stopped due to suspicion he has been diverting the drugs. He stated that the respondent says that he has a high level of physical discomfort and pain on a daily basis and therefore some motivation for his drug use has been pain relief. Dr Madsen also stated:
“It is well documented that substance abuse has been a consistent problem for him throughout his life both inside and outside of custody, and whilst he may not have a physical dependency on such nowadays, he likely has a psychological dependency (i.e. feels that he needs to cope/feel better/confident etc.). Mr Jackway is quite guarded when discussing these matters with me; though perhaps showing some perspicacity regarding this concept, identifies at being out of custody would give him opportunity to get the ‘right kind of help’ to assist him with these problems (i.e. Suboxone). Taken together, therefore, it is likely that in his current context, there are a number of drivers (i.e. addiction, physical pain and discomfort) disinhibitors (i.e. stress, boredom) and destabilising (i.e. peer pressure) factors relevant to maintaining his problems with substance misuse.”
Dr Madsen stated that since his April report he considered that the respondent had continued to engage reasonably well given he is such a “complicated fellow” given his low cognitive functioning, the fact he possesses many problematic traits associated with personality disorder, namely paranoia, social attitudes, impulsivity, and his circumstances of living in custody. He lives in crowded circumstances with anti-social peers in prison culture and is exposed to illicit drugs. Those circumstances are not ideal for therapeutically engaging him about the many difficulties that he experiences in his life.
Dr Madsen concluded however that to his credit, despite these challenges, Mr Jackway has continued to engage with him and seems to talk fairly candidly about the problems he experiences. He considers he is receptive to the therapeutic approach he provides and that whilst he may not always agree with him he listens and tolerates the opinions he offers.
Dr Madsen considered that the respondent’s behaviour had improved since his transfer to the correctional facility at Capricornia and he considers that his ability to regulate his behaviour has improved. He noted that there may be a number of reasons for this such as therapeutic progress, however a likely contributing factor in the slowdown of the problematic behaviour is his age and that research indicates that as offenders age their propensity to act out in anti-social ways reduces. Similarly, research on psychopathic personalities shows that they tend to slow down or burn out as they age in their 40s and older.
Dr Madsen continued:
“Should Mr Jackway be released to the community, he will require intensive ongoing psychological engagement to assist him with not only adjusting to the change in his circumstances but also managing risk – salient characteristics (i.e. anti-social decision-making/attitudes, impulsivity, hostile/grievance thinking, etc.).”
At the hearing Dr Madsen confirmed that if Mr Jackway were released on a supervision order he would engage in twice weekly sessions with him as follows:
“Absolutely. From my perspective, I have recommended similar things in the past in terms of being able to work with someone like Mr Jackway in the community. I would absolutely recommend twice-weekly sessions. Within psychological therapy, working with high-risk offenders who present with many problems, you would typically try to engage them more than individuals who present with less problems, and I would identify Douglas having many problems that need to be engaged and treated – or attempted to be treated, anyway. So, yes, the answer is, yes, I would recommend twice-weekly at least, and I would recommend – and that would be able to be accommodated if he were released to the Brisbane area.”
Dr Madsen considered that Mr Jackway’s personality was such that he is vulnerable to boredom and that it will be a stressor for him particularly as he becomes frustrated very quickly at not being allowed to do things. He stated it would be important to be able to create things for him to do during the day and during the week to assist him to tolerate what can be sometimes a quite tedious and uninspiring environment in the precinct.
The psychiatrists’ reports
For the purposes of this review, the respondent has been assessed by Dr Andrew Aboud and his reports are dated 17 June 2019 with a further report dated 13 September 2019. He has also been examined by Dr Eve Timmins and her reports are dated 2 June 2019 and 29 August 2019. Both psychiatrists also gave extensive evidence at the hearing. I shall refer to all the reports and not just the most recent as it provides a history of the psychiatrists’ views in the light of the changing circumstances which arose during the course of this application.
Dr Aboud’s 17 June 2019 report
In his report dated 17 June 2019, Dr Aboud noted the respondent’s criminal history, the history of the previous reviews and also took into account the following remarks by Brown J:
“I consider in the present context, the more important factor in terms of whether adequate protection of the community can be reasonably and practicably managed by a supervision order is whether in such an environment the respondent is able to conduct himself in a way which consistently implements the strategies he has been developing to control his anti-social behaviour and impulsivity. While the number of his violations have reduced, the fact he succumbed to the offer to take drugs and still responded with threats of violence when threatened and more particularly threatened to smash his cell and placed in a unit he did not want to be in, indicated he is unable to exercise control over his behaviour on a consistent basis.
The view of Dr Grant that a period of 12 months where the respondent successfully indicates he can control his anti-social and impulsive responses before one could be confident that the respondent could be adequately managed under a supervision order is supported by the view of Dr Aboud. Good functioning, both interpersonal functioning and institutional functioning and work functioning would demonstrate that he has a level of control and management of his own impulses, such that one could then be satisfied that he could be adequately managed under a supervision order. I accept the force of that view.”
Dr Aboud noted that Brown J had referred to some positive aspects for the future, particularly if the respondent continued to engage in therapy and develop mechanisms to manage his personality traits, impulsivity and vulnerability to drug and alcohol abuse. It was recommended that he continue his sessions with the psychologist Mr Smith who could have access to the respondent’s conduct records so he could deal appropriately with the respondent’s behaviours. Her Honour concluded that the work with Mr Smith was having a positive effect.
Dr Aboud concluded that all the psychiatrists who have assessed the respondent have consistently agreed that he suffers from an anti-social personality disorder, with features of psychopathy and that he is highly impulsive and has a significant history of alcohol and substance abuse. These factors have been considered to be highly relevant to the risk of reoffending sexually.
Dr Aboud helpfully set out the full details of the respondent’s criminal history, including the offences committed whilst in custody, in a helpful chronology:
Possession of stolen goods
Obscene language and insulting words
Unlawful use of a motor vehicle
Breach of bail (contempt)
Found in an enclosed yard without lawful excuse
(offence later found to be sexual)
Escaping legal custody
Aggravated assault on a child under the age of 16 years
Break and enter dwelling with intent (x3)
Unlawful use of a motor cycle
Possession of replica weapon in a manner likely to cause harm
Break, enter and steal
Unlawful use of a motor vehicle
Break and enter with intent
Break, enter and steal
Attempted break and enter with intent
Breach of a probation order
Unlawful use of a motor vehicle
Assault occasioning bodily harm
Take child under 16 years for immoral purposes with circumstance of aggravation
Indecent dealing with a child under 12 years (x3)
Attempted carnal knowledge by anal intercourse of a child under 12 years (x2)
Assault of a prisoner
Destruction of property
Possessing prohibited article
Unlawful use of a motor vehicle
Wilful damage (x2)
Dangerous operation of a vehicle whilst adversely affected
Failing to stop
Assault occasioning bodily harm
Wilful destruction of Corrective Services property
Dr Aboud noted the respondent’s time in prison had been characterised by a range of difficulties that were associated with his anti-authoritarian disposition and challenging behaviours. He also noted that he had been involved in many incidents and breaches and at times made threats to other prisoners and officers. He had engaged in fights in custody, sometimes as the perpetrator and had damaged property. He had also taken substances whilst in custody and had been convicted for violent offences and property offences.
Dr Aboud stated that in the 12 months since the review decision in June 2018, there had been evidence of improvement and whilst there had been 113 prison violations while the respondent had been in custody over the last 15 years, only four had been in the period between June 2018 and June 2019. He also noted that Dr Madsen considered that the respondent had markedly improved his behaviour in the last two years.
Dr Aboud concluded:
“It is my opinion that Mr Jackway suffers from an Antisocial Personality Disorder, with prominent Psychopathic traits, and this explains his anti-authoritarian disposition, wide-ranging criminal offending and tendency to breach rules. He also appears to have some Borderline (Emotionally Unstable) Personality traits, manifesting with a fragile emotional state, fears of abandonment, and trust issues. These latter vulnerabilities are more pronounced at times when he experiences psychosocial stress, such as interpersonal conflict, personal or social instability. At these times he is at high risk of using alcohol or illicit substances as a means of coping with his emotions. In my view, he meets criteria for important additional diagnoses of Alcohol Abuse and Polysubstance (opiates, stimulants, cannabis, sedatives) Abuse. It is likely that his abuse of alcohol and opiates have been to the severity of dependence. The issue of sexual sadism has previously been commented on by other psychiatrists, and while there may have been some possible sadistic elements within his behaviour at the time of his sexual offending in 1995, I do not find strong evidence that this has been a broad feature of his behaviour at other times. Thus, on balance, I do not believe he suffers from the Paraphilia Sexual Sadism. Similarly, while he committed a crime of indecent exposure in 1993, I do not find evidence that exhibitionist behaviour has been a feature of his general behaviour. While I believe that he likely harbours an underlying paedophile drive, and I am unsure whether he meets criteria for a diagnosis of the Paraphilia Paedophilia. Although it is possible that he is has been lying about not harbouring sexual fantasies regarding children, I suspect that his offence against the 9 year old boy was committed when he was behaviourally dyscontrolled with alcohol and substances, and that this allowed a latent and suppressed homosexual paedophilia to express itself.”
In terms of the risk assessment, Dr Aboud conducted a raft of assessments using the actuarial instruments. He concluded that the actuarial assessments of sexual recidivism, such as Static-99R and Risk Matrix 2000/S, indicate that the respondent presents a high risk. He concluded that the dynamic assessment such as components of the HCR-20 and RSVP also indicate that the respondent’s risk is high. Taking into consideration the various actuarial and dynamic assessments of future violence and sexual violence risk that have been applied, Dr Aboud stated that the respondent’s overall unmodified risk would currently be high in respect of both sexual violence and general violence.
He also stated that in coming to that conclusion he took into account the more worrying aspects of his offending behaviour which included his anti-social and borderline personality structures, his prominent psychopathic traits and his significant alcohol and substance abuse history as well as his underlying anger. He also took into account the sexual offences and the possible sadistic elements of his behaviour in relation to his male victim. Dr Aboud also referred to his level of aggression, the use of physical violence, the use of threats and his tendency to maintain denials.
Dr Aboud noted that in the 2018 review, it was established that in order to progress to supervision in the community, the respondent needed to demonstrate 12 continuous months of improved stability and that since the last judgment he has certainly demonstrated further improved stability and behaviour, and particularly he demonstrated a positive attitude towards psychological therapy. As at the report in June he had not returned a positive urine sample for contraband substances, and whilst he had incurred three prison violations, none were breaches. It was also noted that his general behaviour in prison had improved.
Dr Aboud stated that in 2018 he was not confident that the respondent could properly comply with the order because of his pathway of escalation towards sexual reoffending. Dr Aboud noted that given his positive progress over the last 12 months, the challenge for the court is to decide whether the improvements are sufficient to meet the required standard of custodial behaviour set by the court at the previous hearing in 2018, and whether the respondent “is now showing signs of emotional, impulse and behavioural control that would allow him to be successfully managed in the community subject to a supervision order.”
Dr Aboud ultimately concluded that it would be unrealistic to expect his personality structure to have changed, and that his various vulnerabilities and proclivities remain and would likely remain as chronic problems for him. The question is whether he has demonstrated sufficient capacity for self-control and to arrest the behavioural urge that is underpinned by his emotional instability, impulsive tendencies and reactive anger. He noted that his behaviour had significantly improved but was not without any concern. He concluded:
“It is my view that he is now showing signs of being a man who might now be successfully managed under conditions of a strict supervision order. It is thus now my, on balance, opinion that his risk could be considered manageable in the community subject to a supervision order and in this context would be reduced to below moderate.”
However, Dr Aboud indicated his view was subject to the caveat that should Mr Jackway’s behaviour deteriorate in the period since he was assessed on the 26 April, or if he was actively a prime perpetrator of the prisoner on prisoner assault in August 2018, then he would be less confident in his conclusion.
Dr Aboud considered that should the court release the respondent on a supervision order he would need to be closely monitored and supervised and supported. He would need to reside in a supportive environment such as the Wacol precinct and he would be required to abstain from using substances and alcohol and be subject to a regular testing regime, he not be allowed unsupervised contact with any child, and he would continue to attend appointments with his psychologist and incorporate a continuing motivational interviewing style of therapy to enhance his motivation to succeed and remain abstinent, utilise professional supports and not re-offend. He considered any such order should be for ten years.
Dr Aboud’s 13 September 2019 report
Dr Aboud provided a further report addressing the incident where the respondent took drugs on 3 July 2019. Dr Aboud was not however aware of the 13 June 2019 incident with the locum doctor which preceded this incident, at the time he wrote his report. He outlined the respondent’s account of the July breach to him in the following way:
“There were a few things going on. I was offered it three days in a row, and on the third day I said “Yeah, go on”.
Dr Aboud noted that the respondent stated that he was sick of not sleeping and being in pain as well as the fact that they had stopped the medication Tramadol because they alleged he had been caught diverting the drug a number of times. He has asked for the medication to be restarted but has failed to do so. He only gets Brufen for the pain and nothing else. He stated he was annoyed with the doctor.
Dr Aboud’s report continued:
“I did it, in part, to sabotage my release… I’m scared of getting out … I’ve been in for 17 years. I don’t know what to expect. Whenever I go to court, there’s a big burst of media. I don’t need to (sic) media doing that to me or my family. I’m over it all. I’m scared about getting out. I don’t like the media stuff. I’m not sure what it will be like on the outside. People tell me things about the houses at Wolston … that living there is worse than jail … you can’t do anything wrong, or you’re sent back to jail … and having to live with them all … I don’t want to have to live with other sex offenders. I know what I’ve done, and I hate what I’ve done. But I see them as pieces of shit … and half of them, I’ve bashed. And now I’ll have to live with them on the outside … So, there’s a thing inside me that doesn’t want to progress. I know I sabotaged, and I told the lady psychiatrist the same thing when I saw her 3 weeks ago.
But there’s also a part of me that wants to get out … it’s like I’m juggling how I feel … it’s complicated.
And I’m anxious about not knowing what’s going to happen … not knowing … I know I’m not going to reoffend, but I don’t know how I’d cope with the houses.
Of course, I want to get out … but sometimes I think it would be better if I just stay inside … easier for my family … easier for me, I suppose.”
Dr Aboud’s conclusion in his September report was that the opinion he expressed in his previous reports remains unaltered. He outlined that the respondent admitted he took the medication illicitly and that his explanation was he gave into temptation, had poor self-control and wanted to manage his back and shoulder pain. He told him he wanted to sleep better but also he wanted to self-sabotage his release prospects. He acknowledged the respondent’s concern about feeling anxious about release and how he would cope in the community having been in prison for so long as well as not wanting to reside with other sex offenders in the precinct. Dr Aboud stated that the respondent indicated to him that he does not like the other sex offenders and there had been some hostility with some of them in the past. He also has a great concern that the media attention would focus on his family and Dr Aboud considered that the respondent has a high level of ambivalence about release at this point in time. Dr Aboud noted that the respondent also took Buprenorphine at the time of his previous annual review:
“It is my view that this represents a significant problem for him at present, and one that escalates his level of risk for re-offending sexually, and to a level that is above moderate, even when modified by a supervision order.”
Dr Aboud referred to the previous reviews where it was considered that the respondent would need to demonstrate 12 months of incident-free behaviour prior to being considered a safe prospect for release. That conclusion was reached because it is considered that the respondent’s pathway of escalation towards sexual reoffending would occur in a circumstance of psycho-social stress, leading to impulsive and poorly thought out decisions to maladaptively manage negative feelings with alcohol or substances. In those circumstances it was considered that his progression from a stressful situation to a high risk outcome might be rapid.
Dr Aboud stated that therefore in order to be confident the respondent could be successfully managed in the community on a supervision order it was considered necessary to see behavioural evidence that he could manage his various stressors appropriately within the prison environment and substance abuse was considered to be a very important component of this requirement.
Dr Aboud stated that the respondent’s recent positive drug test is clear evidence that he has not achieved this period of 12 months’ incident-free behaviour in prison. Accordingly, Dr Aboud stated that he revised his previously expressed opinion and recommended that the respondent:
“could not now be safely managed in the community at this time, and that he again needs to demonstrate 12 months on incident/breach free behaviour (evidence of his emotional stability, impulse control and behavioural control), which could give rise to confidence that he would be able to comply with the conditions of a supervision order”.
Dr Aboud considered that the respondent was ambivalent about release and that the risk of self-sabotage remains an outstanding issue which needs to become the focus of a psychological therapy. He stated that that was important because it would be particularly concerning if the respondent were to experience such feelings in the community and was to make maladaptive decisions to take substances to self-sabotage in community placement which would potentially precipitate exactly the high risk situation as being considered imperative to avoid.
Dr Aboud continued:
“I recommend that his psychologist prioritise motivational work into the therapy sessions, and in particular focus on Mr Jackway’s motivation to succeed, in addition to work designed to assist him I (sic) managing anxiety about the future and dealing with the possibility of adverse media attention (which may be an ongoing issue). Further, he should be provided, by QCS, with information about his potential future post-release accommodation and details of the conditions that he is likely to experience and the expectations of his behaviour. Such information will serve to reduce his anticipatory anxiety, which appears to be a factor at the current time. In summary, it is my recommendation that both QCS and his psychologist endeavour to focus on preparing him for potential future release, recognizing that that he has become ambivalent, uncertain and anxious.”
Dr Aboud also gave extensive evidence at the hearing and in particular he addressed the incident with the locum medical practitioner when his request for medication was refused which was a few weeks before the drug use on 3 July 2019, as well as the report of Dr Minge summarising his sessions with Mr Jackway.
In his evidence to the court, Dr Aboud stated that having considered the locum doctor’s notes of the interaction with Mr Jackway on 13 June 2019, that report consolidates his view that Mr Jackway does not have the emotional stability and the behavioural stability to warrant safe release to the community. He considered that the interactions with the doctor escalated towards anger and threat and the doctor felt physically threatened. Dr Aboud noted that the discussion about the request for opioid medication quickly escalated when the demands of Mr Jackway were not met. He noted that he became physically violent, combative, screamed, became even more agitated and aggressive, shrieked threats and insults and then was in such a state that the locum doctor considered he had no self-control or insight.
Dr Aboud considered this was significant because it has always been his view that Mr Jackway needs to demonstrate emotional and behavioural stability in the custodial setting in order to inspire a level of confidence that he would be able to continue to do that in the community. He stated that “this is evidence that supports a view that he is not able to do that in a custodial setting.”
In terms of the consequences should Mr Jackway be unable to control his emotions and behaviour, Dr Aboud stated:
“Well, one needs to broadly consider Mr Jackway’s vulnerabilities and how they pertained to his index offence, and so I would summarise by saying that, when Mr Jackway is lacking emotional control and he is more likely to then use substances in order to manage emotions to maladaptively manage his stress, and, with it, he is likely to further destabilise mentally, and that in itself then leads to a rapid pathway of escalation of risk towards sexual reoffending, and hence there is an emphasis that, in my mind – and it’s my understanding that that was accepted by the court last hearing and the hearing before – that Mr Jackway needs to demonstrate that he can, in fact, manage his emotions and his adaptive decision making within a custodial setting. So, in summary, his decision making runs the risk of being poor, and he might use substances in order to manage those emotions, which would further destabilise him. When mentally unstable – and by that I don’t mean mentally ill, I mean in a state of mind where he is angry, where he is frustrated and where he is under the influence of substances – I think there is a high risk that he would further use more substances, further destabilise, not adhere to direction or to the rules or conditions of a community release. There is a real risk that he could decide to throw in the towel psychologically, that is, that he has crossed a bridge by which he doesn’t feel he can come back from, and, with that in mind, he might further destabilise himself with substance or alcohol use. He might even decide to leave his accommodation and go elsewhere, perhaps in search of substances. I’m marrying up this view and this formulation against the sequences of the index offence, bearing in mind that he was housed with his brother – his brother-in-law, sorry. He became frustrated at restrictions being placed upon him and being advised that he needed to control his behaviour or improve his behaviour, and, in the night, he took car keys and left and then took substances and alcohol over a period of a few days, and his state of mind deteriorated to a point where what appears to have been his underlying paedophile proclivity became the driver of his offending.”
Dr Aboud noted that Mr Jackway denies a paedophilic drive and stated that that may well be the case when he is not under the influences of substances or alcohol, because he is able to manage his inhibitions. However, Dr Aboud considered he actually harbours an underlying paedophilic drive, based on early trauma and that when he becomes destabilised, probably through the use of drugs and alcohol, this drive comes to the fore. He also considers that this drive is laden with anger, probably because of his own maltreatment when he was a boy.
Dr Aboud also stated that Dr Minge’s treatment summaries indicated to him that Mr Jackway is indeed ambivalent about release and anxious about whether he can manage living in the precinct of accommodation. Dr Aboud also considered that there was a real concern that Mr Jackway would throw in the towel once released because of the challenges he faced in the community. He considered it was a choice that if he chose to make it, might catalyse a high risk situation through high risk destabilising behaviours which would include:
“…well, initially a resistance to direction, to the rules and conditions of his placement. He might find them to be too restrictive and reject them as unreasonable. He might seek to undermine them, that is by taking illicit drugs, not disclosing that. He might further escalate, as he takes more illicit drugs, towards further escalation of – of that. Ultimately, he might decide that living on the precinct is not compatible with where he wants to be. The problem with giving up is that he would have no – no recourse to – to support or advice that he would probably need.”
Dr Aboud considered that the worst case scenario would be that he would go on a bender using intoxicating substances which would reduce his behaviour or control, increase his disinhibition and allow him to behave in a more anti-social way, to put less weight on reasonable direction and then offend sexually. In particular, he considered that it was worrying and ominous that previously he had gone from a reasonably stable state then when he had conflict with his sister’s partner, he ended up “leaving the home, taking substances, taking alcohol and becoming intoxicated, but then having a very powerful drive to sexually offend against a stranger male child and actually abduct that child for the purposes of molesting him”.
Dr Aboud also stated that he was concerned about the level of Mr Jackway’s Subutex or Suboxone use in custody, given his statement on the 4 October to a corrections officer that he “uses Suboxone all the time”.
Dr Eve Timmins’ 2 June 2019 report
Dr Timmins also examined the history of the respondent’s criminal offending as well as his progress in custody, including the programs he had completed together with a summary of the reports of the psychiatrists who had examined him for the previous review hearings. Dr Timmins also noted the outcomes of all of the previous reviews.
Dr Timmins considered that the respondent has evidence of a mixed personality disorder with narcissistic, borderline and anti-social traits. She considered that he also had psychopathic traits given his score on the PCL-R. Dr Timmins was not certain however whether he met the criteria for sexual deviance, such as paedophilia, because he denied any sexual thoughts or fantasies in relation to children or coercive sex or other deviance. She noted however that both episodes of sexual offending involved offences against underage children.
Dr Timmins also considered he had a polysubstance use disorder given he has used multiple and varied substances, although he prefers opioids. She noted that his diagnosis of a mixed personality disorder with narcissistic borderline and anti-social traits with psychopathy arose from his adverse childhood experiences which included exposure to violence, sexual abuse and poor attachment. She considered his personality structure was likely to cause him issues and that he was prone to lying or at least omitting information when questioned.
In Dr Timmins’ view, the respondent has a deep sense of mistrust and attempts to manipulate and control the environment and those around him. She considers that his experiences have led to very poor affect regulation, difficulties in relationships, poor self-esteem as well as the use of substances and violence as a way of life. Dr Timmins also indicated that any use of substances would increase his risk of general violent and sexual offending. She considered if he came across any difficulties in a relationship, then he would revert to substances. She stated that any problems he faced in the community where he has negative emotional states are likely to trigger old thoughts of retaliation, lack of caring about himself and others, violence, substance use, and the avoidance of responsibility. It was her view that if he acted on those thoughts, he loses the ability to gain control over a situation through effectively problem solving to find a resolution that is likely to be a better option for him. She considered that he needs to let go of attempting to manipulate situations to what he perceives as his advantage as it is evident this does not work as a consistent strategy for him and invariably he ends up having consequences he does not like. She noted the positive psychological treatment which had been of benefit to him.
Dr Timmins noted that the respondent had used substances just prior to and after the last court hearing in June 2018 and has had three subsequent incidents documented, namely an assault on a co-prisoner in August 2018; a medical emergency and abuse of a corrections officer.
In this June 2019 report, Dr Timmins considered that despite these instances, there appears to have been a gradual amelioration of his propensity to use violence and substances as a way to solve problems. She stated that such a result is not simply because he has aged, but she considered he had worked hard at managing himself better and that his insight into his offending and his capacity to manage himself was improving over time. She considered that despite the positive aspects, he was still a risk without an order as he is an immature man with little knowledge as to surviving pro-socially in the community and as such is likely to struggle to integrate in the community. He is able to function in the prison environment, given he has spent most of his adult life in prison, but the same rules do not apply in the community. She also noted that any successful reintegration would require a significant degree of practical and emotional support to navigate the world so as not to raise the risk he represents.
In conclusion, Dr Timmins considered that the respondent would be at high risk of reoffending in a sexual manner if released into the community without a supervision order. She considered that if he did offend sexually, it would be against children of either sex or even female adults given his propensity to violence and what appears to be difficulties with women. She considered that behaviour could extend to penetration and that would mean there was a potential for a high degree of harm physically and psychologically. In her view the risk was not an imminent risk that would occur as soon as he is released, but rather it is likely to escalate over time if he becomes stressed and out of control, leading to negative emotional states and thoughts of violence, a return of strong urges to use substances, then he would make poor decisions regarding this choice before behaving in an overtly violent manner which could include sexual violence.
Dr Timmins stated that the respondent would require ongoing and frequent psychological sessions and if he were to be referred to a psychiatrist, he could continue anti-depressant medication. She also indicated that other psychotropic medications, which would assist in the management of his emotional state, could also be considered. She noted that he would need appropriate accommodation, GPS monitoring at work, together with appropriate friendships and pro-social activities. She noted his personality structure would cause him problems in relationships. Overall, she considered that his risk could be modified by a community supervision order and as such his risk would fall into the moderate risk category. She considered the duration of the order would need to be at least 15 years given he is still relatively young.
Dr Timmins further Report dated 29 August 2019
Dr Timmins examined the respondent again on 13 August 2019 at the Capricornia Correctional Centre. During the interview Dr Timmins spoke to the respondent about his back pain which resulted from two compressed discs in his lumbar spine which continues to disturb his sleep due to the constant back pain. Whilst he had injections in his back in April he reported that they were not effective. He stated that the use of Subutex, which has prompted this review hearing which gave rise to the breach, was not due to him sabotaging his release, but rather the fact that he had had enough of being in pain. He took Subutex strips which had been obtained illegally and then gave a urine sample the following day which tested positive for opioids. The respondent stated the last time he had previously used drugs was 12 months before which was notably around the time of the previous review.
The respondent confirmed his concern about going to the precinct stating that he does not talk to other sex offenders and to him they are “dirt”. He told Dr Timmins that he has nothing in the community and has to start over afresh. It would seem his mother is in South Australia and his sister is on the Sunshine Coast. He had great concern about the fact his family would be terrorised if he were to be released. He stated that he would be focusing on being placed on the Subutex program when he was released as that would help him to stay off heroin which was his drug of choice. He stated that he likes opioids as they “block everything out”. He states that taking Subutex means he does not get stressed. The respondent told Dr Timmins that he would not react to stress through violence and that he was adamant that he was never going to offend sexually again.
The respondent told Dr Timmins that he had assaulted most of the sex offenders residing at the precinct whilst they were in jail. It posed another issue for him around his safety at the precinct. Whilst he acknowledged he would need help on release, he was hesitant to ask for it.
A concern addressed by Dr Timmins was in relation to an example she was discussing with the respondent about arrangements he would make when visiting his sister on the Sunshine Coast, and in particular his inability to understand why he could not take a shortcut off the main highway when travelling, arguing that it would be easier as he knew the area. Dr Timmins stated:
“However, it took some time for him to understand that unless this route had been pre-arranged with QCS, that it may cause some concern regarding his movements. He seemed to struggle with expectations and communication around his behaviour under a community order. He seemed very concrete in his thinking around other’s behaviour towards him, but wanted some leeway when it came to his own behaviour. This may be due to his personality structure and his anxiety about what is expected if he were to come under a community order.”
Dr Timmins continued that she considered his thought content revealed his fear of any potential release and his concerns relating to residing at the precinct with paedophiles, his safety and the impact the media might have on his family. He also expressed concerns about those who had been placed on supervision orders in the community and had returned to jail within a short space of time. He stated:
“In addition, he sees many people on DPSOA orders come back to prison, sometimes within a month. He stated, ‘If it’s that easy to be tipped back, I say stuff it I’ll stay in here’… at least I know what I’m doing in prison.”
Dr Timmins considered that if he returned to substance use in the community, his judgment is likely to be poor and he is at risk of reoffending including in a sexual way.
After her interview with Mr Jackway Dr Timmins received and reviewed the Offender Health Service Patient Records and in particular noted in October 2018 there were concerns about the respondent “cheeking” his Tramadol on numerous occasions. It was then ceased on 24 October 2018 and it was on that occasion that he presented the next day after swallowing a battery. Dr Timmins also noted the case note of that day in relation to the respondent’s abuse of health staff on that occasion.
On 1 March 2019 he was once again noted to have palmed medication, and once again the Tramadol was ceased. It would seem that he has been caught on numerous occasions diverting medication.
On 13 June 2019 the respondent was seen by the GP regarding the episodes of diverting his medications and his demands to have the medications reinstated. Dr Timmins noted:
“During the discussion Mr Jackway became increasingly heated and physically violent. He screamed that he was going to call his lawyer. He became more agitated and aggressive. The general practitioner had to have the officers escort Mr Jackway out of the room. He was placed in Protection only waiting room and stood on the bench to “scream out accusations of homosexual and incestuous paedophilia” at the doctor. The general practitioner believed that Mr Jackway was “highly violently dangerous, impulsive and desirous of revenge at any cost and should be seen with officers in attendance and for serious medical conditions only as he has virtually no self-control or insight if his demands are not instantly gratified – especially with his quasi-delusional denial of even the most basic facts and the rights and feelings of others unless (and as long as) others are of service and ongoing utility to/for him.”
Dr Timmins recorded that the drug tests on 3 July 2019, when he tested positive for Buprenorphine, indicated that there was 11ug/L detected in circumstances where the cut-off was 2ug/L.
Dr Timmins also noted that the respondent travelled between the Capricornia Correctional Centre and Maryborough on 10 July 2019 and then on to Wolston on 12 July 2019 and that the notes indicated were no issues during the transfer. Upon reception at Wolston on 12 July 2019 however, the respondent was noted to be “situationally dysphoric with an agitated effect. He advised that:
“he did not want to be at WCC and was going to play up when he gets a chance…Prisoner Jackway reported some concerns relating to his sleep due to withdrawals from using in custody. He reported nil concerns relation to appetite and energy; reporting three meals per day and no change in energy levels.”
Dr Timmins initially considered that her assessment would not change from her previous report of 2 June 2019. She was still of the opinion that the respondent will be a high risk of re-offending in a sexual manner if released without a supervision order. Dr Timmins noted that the respondent had made poor decisions when it comes to managing his situation and stress leading up to court and in particular he had issues around his ongoing back pain, the cessation of his pain relief in March, and his ability to address those issues in an appropriate way as well as family expectations and the impending court date. In her view they have all led him to not being able to manage his emotional state and accordingly those factors culminated in an incident in the health centre in June and the use of Subutex in July.
Concerningly, Dr Timmins noted that the information in relation to those issues did not arise until after she had interviewed Mr Jackway, so she was unable to ask the respondent about what occurred with the general practitioner on 13 June 2019. What she considered significant however was the fact that he did not disclose to her the negative interaction with the doctor “suggesting positive impression management” and “potentially an attempt at controlling [Dr Timmins’] view of the situation by omitting an incident that he knows will potentially cause issues with release which suggests that he has not and will not be transparent with information.” Dr Timmins went on to state that “this is a reflection of his personality structure which continues to be an issue for him and is likely to cause him problems under a community order.” She also notes that he was not breach for the episode, nor was an incident report generated despite the fact officers were present.
Whilst Dr Timmins considers that the respondent has demonstrated the capacity to decline illicitly obtained substances which are offered to him there is evidence that he has been verbally aggressive and abusive and has used Buprenorphine when offered to him. It was in a subsequent breach after the drug test on 3 July 2019 when he lost privileges on 20 July 2019 and Dr Timmins noted he was aggressive before he used substances over these two weeks, meaning he does not have to use substances in order to get aggressive.
Dr Timmins considers that whilst he could become frustrated due to the difficulty in accessing appropriate pain relief, he does not consider this fully explains the situation when he used Buprenorphine. She indicates that she considers that what he did with his frustration is concerning and also considers that his use of Subutex appears to be a way of undermining any potential release under a community DPSOA order.
Dr Timmins considered that there may be ways to manage his stress, in particular that he be released but not to the precinct. She considered, however, that there could be other issues which would arise for such a decision and:
“not all of the problems can be mitigated perfectly and Mr Jackway must be able to manage his emotions such that he does not breach the conditions of his order and offend sexually. His behaviour does raise the possibility that he is not ready for release. I continue to be of the opinion that his risk of offending sexually will not be an imminent risk that occurs soon after release. His risk of sexual reoffending is likely to depend on a number of factors in particular emotional distress and instability, use of substances, lack of access to supports, and problems in relationships with feelings invalidated and vulnerable. The risk is likely to escalate over time Mr Jackway becomes stressed and out of control leading to negative emotional states, outbursts of anger and thoughts of violence, a return of strong urges to use substances, then making poor decisions regarding his choice before behaving in an overtly violent manner which could include sexual violence. There is likely to be a lead-in time for this final behaviour which means there could be opportunities for Mr Jackway to access supports thus subverting negative consequences for himself and the community.”
Dr Timmins was of the view that the respondent would require intensive support if he was to be released. She then continued to indicate that communication would be an issue for him and that there needed to be certainty about what was expected from officers and he needed to give to Corrective Services the same level of certainty about his plans. She considered:
“He must not use substances, ever. Regular and frequent urine testing will be necessary. He has improved in his capacity to manage without using substances. This current situation with his pain relief medication is probably not going to occur in the community. There may be a case for a community general practitioner to prescribe appropriate pain relief for his back and refer him to the Subutex program. However, the behaviour towards the GP in the clinic in June 2019 is a concern despite this likely to be a culmination of a number of stressors for Mr Jackway. It shows he still thinks on some level that this sort of behaviour will give him what he wants and can be used if necessary. Although on the other hand he has demonstrated that he tried different avenues in order to have his pain relief maintained. He would not be in that situation if he had been transparent about his use of pain relief to begin with, that is not divert.”
Dr Timmins also considered his support network would be vital and needs to be well thought out and monitored. She considered he needed twice weekly psychology sessions with his current psychologist Dr Madsen and she also considered a psychiatrist might be an important part of his support network.
In her evidence to the Court however, Dr Timmins was concerned by a number of factors including the treatment summaries of Dr Minge which she considered indicated that Mr Jackway had become more unsettled or destabilised. She considered that Mr Jackway was not prepared for a change in psychologists and the need to develop a therapeutic alliance with someone he said he dislikes. Her view was that he had said a number of concerning things in the sessions including the likelihood of returning to drug use and that he wasn’t going to stop “getting stoned”. He said that heroin was his preferred drug of choice and in her view he also seemed to be “very focused about getting on a Suboxone replacement program”.
“He is going to – or potentially going to the precinct, a place that he doesn’t want to go to at all, with other sex offenders who he has, you know, assaulted some of them in the custodial setting. He has said that he doesn’t want to get a job. He said that he potentially use drugs. He’s asked about associate who, you know, potentially are other criminals. He – he has few supports within the Brisbane area. Most of them are either interstate or outside of Brisbane. These are concerning features and I think he is understandably anxious and highly ambivalent about what’s out there in the community.
MR ROLLS: And how is that relevant to risk ‑ ‑ ‑?
DR TIMMINS: Well ‑ ‑ ‑
MR ROLLS: ‑ ‑ ‑ of the commission of serious sexual offence?
DR TIMMINS: ‑‑‑What we’re doing is – you’ve got a man who is very anxious, scared, highly ambivalent about getting out into the community, when we potentially put him out there in that state, and then there is all of these pressures on him to comply with the order, to not use drugs, to not commit a violent offence, to not generally offend, to not, you know, commit a sexual offence, to go to, you know, certain things, to pay rent, to get accommodation, you know, obtain work. All of these sorts of pressures that, you know, are expectations on him and he has very few plans to actually deal with any of that. And nowhere to start with any of that.
MR ROLLS: And what’s the consequence of that?
DR TIMIMINS: ‑‑‑Well, potentially, he will maybe initially try but then he will quickly get very frustrated. He’s already frustrated. We put him out there in the community. He’ll get more frustrated, potentially use drugs, then he becomes intoxicated and very rapidly will we be potentially looking at a picture where he’s sexually offending against a young person.
MR ROLLS: When you say very rapidly, what timeframe do you envisage elapsing between the intoxication and the possible commission of a serious sexual offences?
DR TIMMINS: ‑‑‑Very quickly. Within 24 hours from first accessing drugs. Not going back to the precinct, not accessing supports and going on to offending in a serious sexual manner.”
Dr Timmins was asked whether her opinion as to whether Mr Jackway could be managed in the community had changed as follows:
“MR ROBSON: And so the pathway to this manifestation of risk is, in your opinion, unchanged – are your opinions unchanged about that, what you’ve said in your initial report there?
DR TIMMINS: ---I think at – at this present time, the – the events over the last sort of three months have raised concerns that he is either destabilised or he is in the process of destabilising, which means that when he gets out, the time between release and using substances, if the situation is continuing, he gets more and more frustrated, is less than if he were let out in a much more stable mental state, a much more confident in his abilities to actually deal with the community. Then you’ve got a lot more time.
MR ROBSON: In terms of evidence of his – the instability of his mental state over the last three months, are you talking really about the incident on the 13th of June there?
DR TIMMINS: ---The incident on the 13th of June, also the use of Suboxone just before – sorry, Subutex just before the last court date in July and also the – what he has told both the psychologist and the high risk management unit regarding his – what 10 he perceives is out there in the community. And his verbalisations about potentially using drugs, potentially returning to an antisocial lifestyle, his intent to not go and get work, his unrealistic expectations around getting on the Suboxone program, having to wait for that, his ideas about using heroin. These sorts of things are concerning features.”
Ultimately Dr Timmins stated that there is enough evidence for her to indicate that Mr Jackway “is not - not in a state that I would feel comfortable that he’s confident enough to manage his own risks in the community.”
Affidavit of Jolene Monson, the Acting Manager of the High Risk Offender Management Unit sworn 2 October 2019
Ms Monson is the Acting Manager of the High Risk Offender Management Unit (HROMU) and swore an affidavit in these proceedings in relation to the steps that QCS would take if the respondent were to be released under a supervision order as follows:
“If the Court were to order the respondent’s release from custody under a supervision order, QCS would tailor a supervision order taking into consideration the respondent’s offending history, offence pathway, relevant risk factors, and psychiatric evidence. QCS engage in a range of supervisory functions that can reasonably form part of a supervision order. Broadly, these functions could include electronic monitoring, offending reporting, home visits, collateral checks, drug and alcohol testing and surveillance.”
Ms Monson stated however that QCS has concerns regarding the respondent’s ability and willingness to comply with any order made by the court to manage his risk to the community. In particular she noted that QCS does not escort offenders when they are granted leave passes to attend particular places and whilst curfews can be applied to offenders upon release to supervision, they are generally limited and offenders are given passes to attend necessary appointments. Furthermore, it is expected that on release the offender will access the community to fulfil other requirements and service his general living needs such as going to doctors’ treatments and grocery shopping. Accordingly the capacity of QCS to manage and minimise an offender’s risk to the community through the use of curfews is limited and balanced against their reintegration needs.
Furthermore in relation to GPS tracking she stated that GPS tracking at best provides a general overview of movements and patterns and it does not detect victim access or offending. In particular it may not be effective for offenders who demonstrate a history of offending against a victim in a rapid and opportunistic manner in a public place or other location where they have a reasonable cause to be there.
Whilst there is regular and random drug testing, QCS cannot ensure that the respondent will not engage in substance use or prescription medication abuse in the period between substance tests. The effectiveness of his compliance with the requirements requiring abstinence will depend on the random nature of the regular testing as a sufficient motivation.
It is noted furthermore that the respondent has not put forward an address to be assessed for accommodation. Whilst the QCS provides contingency accommodation at Wacol, Rockhampton and Townsville, it is only available to those offenders who have no suitable alternative accommodation and is usually only available for a short period. It is confirmed there will be a vacancy at Wacol if the court orders his release. Ms Monson noted that:
“Whilst housed in QCS contingency accommodation, offenders are expected to continue to actively source suitable long-term accommodation in the community. Whilst some initial support is offered on a case-by-case basis, offenders are expected to live independently and are responsible for their reintegration activities within the community in accordance with the conditions of their order. This includes shopping, cooking, and using public transport systems to meet appointments and other obligations.”
Ms Monson noted that the QCS contingency precincts are not secure facilities and that QCS does not provide an intensive personal support program and does not include activities such as escorted day leave or day-to-day life skills. Whilst Dr Madsen treated the respondent between October 2017 and August 2019, it ceased at that point as he was no longer providing treatment at the Capricornia Correctional Centre and Dr Sam Minge was engaged on a fortnightly basis and saw him four times in the period since August 2019.
If the respondent is released into the community, Dr Minge will continue his treatment in Brisbane. The treatment with Dr Madsen will continue, however if he is detained then he will continue the psychological treatment at Capricornia with Dr Minge or in Brisbane with Dr Madsen.
At the hearing, the Case Notes of a meeting held by the High Risk Offender Management Unit with Mr Jackway on 4 October 2019 was filed by leave. The purpose of the interview was to provide Mr Jackway with information on what to expect if he was to be released under a supervision order and to obtain relevant information from him prior to his release. I consider the following extracts as outlined below to be of particular relevance.
Case Notes of High Risk Offender Management Unit interview with Mr Jackway on 4 October 2019
The Case Notes included the following:
“He stated he will likely know many people on the precinct, but doesn’t know who does and does not live there. He stated if they leave him alone, he won’t have an issue with them. He confirmed he has likely been in fights with several people who now reside on the Wacol Precinct.
JACKWAY indicated that he has no applications with housing providers, however would not want to live on the Wacol precinct for long. He was advised if he is released to an Order, he would likely be a Precinct resident for a significant period of time, until suitable accommodation is identified.
JACKWAY confirmed he remains prescribed Avanza and Voltaren only and this is not sufficient for his back and shoulder pain. He confirmed he was ceased on Tramadol earlier this year. He stated he has previously taken Suboxone to assist with his sleep as he continues to experience trouble sleeping. JACKWAY was advised upon release, he would be referred to a GP clinic of his choice and that GP would be provided with relevant medical information so as to determine what medications he should be prescribed. The writer suggested Inala Indigenous Health may be suitable given the clinic has significant experience with prisoners and those released to community based orders.
JACKWAY was advised he would need to take prescribed medication only as directed and issues may arise if he is found to be taking more medications than prescribed or otherwise abusing medication. He expressed his understanding. He confirmed he would want to be on the Suboxone program and asked how quickly he could get on to the program. He stated he doesn't see what the issue is with him taking Suboxone, given others take the medication and don't seem to be reprimanded. The writer advised he should be well aware of the concerns regarding his abuse of illicit and prescribed substances by reading and hearing the diagnoses and recommendations of the court appointed psychiatrists. The writer advised the amount of time it takes to be assessed for the Suboxone program upon release would depend on when AODS would be able to schedule an assessment appointment with him, and this may take a few days. JACKWAY expressed some concern with this. The writer suggested surely he can wait a few days to obtain Suboxone, given he has provided some clean urine samples in custody and appears to be able to avoid using Suboxone. JACKWAY hesitated at this point, and the writer sought to confirm with JACKWAY that his urine test history suggested he is able to abstain from Suboxone at times. JACKWAY then stated he uses Suboxone "all the time".
JACKWAY was advised he will need to demonstrate the ability to abstain from Suboxone upon release if and until he is accepted on to a Suboxone program. He is aware drug use whilst subject to an Order may result in him returning to custody.
The writer advised Jackway whilst Wacol Precinct Rules indicate precinct residents should seek approval to enter other houses to visit, this often does not occur and he is likely to face situations in which people he may not want in his house visit others in his house and spend significant time there. He was asked how he would manage situations like this, given they are very likely to occur and he needs to avoid physical confrontations with others. JACKWAY did not have a response to this, other than to state as long as they stay away from him there will be no trouble. He was reminded he has been engaged in psychological counselling specifically working through situations like these for many years and he needs to utilise and draw on his learned skills to appropriately handle such situations. He was advised he will not have control over what other Precinct residents do and as such he will need to manage his own behaviour.”
There are essentially three questions that the Court must turn its mind to:
- Firstly, the Court must consider whether the respondent is “a serious danger to the community in the absence of a Division 3 order”;
- If so then the Court must consider whether “the adequate protection of the community” can be ensured by release of the respondent on a supervision order; and
- If the answer to that question is in the negative, then generally (subject to any discretion to make no order) a continuing detention order should be made.
Should the Court affirm the decision that the respondent is a serious danger to the community in the absence of a Division 3 order?
Counsel for the respondent has not expressly conceded this point but it is not seriously contended that the respondent is not a serious danger to the community in the absence of a supervision order. The Reports of Drs Aboud and Timmins make it clear that the respondent is a serious danger to the community in the absence of such an order and that even if he were subject to a supervision order and he complied with the conditions that are proposed under such an order the risk of committing a serious sexual offence is only reduced to a moderate risk.
I am therefore satisfied that the first question must be answered in the affirmative and that Mr Jackway is a serious danger to the community in the absence of a Division 3 order.
Can the adequate protection of the community be ensured by the release of the respondent into the community?
As Counsel for the applicant concedes, there ought to be a preference for a supervision order over a continuing detention order and it is for the applicant Attorney-General to establish that the adequate protection of the community cannot be ensured by release subject to the conditions of a supervision order. The issue in this case is whether the applicant has discharged the burden on it by establishing that the terms of the proposed supervision order cannot provide adequate protection of the community.
Under the regime which has been established by the Dangerous Prisoner legislation, the way in which the risk that a respondent represents to the community can be managed is by way of a supervision order with appropriate conditions which adequately address the risk. Accordingly the intersection of the risk which a respondent presents, and the management of that risk by way of a supervision order, is crucial. It is only if the court is able to reach a positive conclusion that the risk can be adequately managed by a supervision order that a supervision order can be made. I have considered the proposed draft supervision order and note that the applicant concedes that proposed condition 8 should be removed. The question is whether these proposed conditions can adequately manage the risk posed.
This is the sixth annual review for Mr Jackway. His last sexual offence was committed in 1994 which is some twenty five years ago. He has spent most of his adult life in prison and is institutionalised. There is a consensus amongst all of the psychiatrists that he has a personality disorder which is, on Dr Aboud’s assessment, an antisocial personality disorder with prominent psychopathic traits, or on Dr Timmin’s assessment, a mixed personality disorder with narcissistic borderline antisocial traits. Drs Aboud and Timmins also consider that he meets the criteria for alcohol and polysubstance abuse and that the use of such substances has been of such severity as to lead to dependence.
There can be no doubt that there have been some significant gains in the past 12 months. Mr Jackway’s behaviour in the custodial environment has improved given his history as outlined by the psychologists and the psychiatrists who have examined Mr Jackway for the purposes of this review. In particular Dr Timmins considered that there had been “a gradual amelioration of his propensity to use violence and substances as a way to solve problems. This is not simply because he has aged, but also Mr Jackway appears to have worked hard at managing himself better. His insight into his offending and capacity to manage himself is improving over time.”
Had the respondent not provided the positive urine test on 3 July 2019 and had the incident with the locum doctor not occurred on 13 June 2019, or if he had at least revealed the incident to the psychiatrists and psychologist, the gains that the respondent had made would have provided a good factual basis for the court to be satisfied that Mr Jackway could be managed on a supervision order. The reports of both Drs Timmins and Aboud prior to those incidents were such that they provided some significant support for such an order.
In his initial report for this review and prior to knowledge of the incident of 13 June 2019, Dr Aboud initially considered that Mr Jackway was showing signs of being able to be successfully managed under conditions of a strict supervision order and that the risk he poses could be managed in the community subject to such a supervision order would be reduced to below moderate. However in his oral evidence to the court Dr Aboud stated that the positive drug test was clear evidence that he has not achieved this period of 12 months incident-free behaviour in prison and he therefore revised that opinion. He stated that the respondent could not now be safely managed in the community. He once again stated that Mr Jackway needs to demonstrate 12 months of incident free behaviour because that indicates evidence of his emotional stability and impulse control which would then give rise to some evidence that he would be able to comply with the conditions of a supervision order.
Whilst Dr Aboud acknowledged that the respondent had a good therapeutic relationship with Dr Madsen and that he would be seeing him twice a week if released, he was not satisfied that this relationship would sufficiently mitigate the risk posed. He continued:
“Look, I think – I think it –it does to a point. The difficulty arises in that, at this current point in time, Mr Jackway’s state of psychological stability is just not evident. So while he seemed to have been more stable three or four months ago, he is - he is less stable now than he was. Dr Madsen’s involvement would be - would be protective, but I believe that there is quite a large volume of psychological work focusing on adaptive coping, and problem solving that needs to occur over the next 12 months, in custody, prior to release.”
In particular Dr Aboud was concerned that the respondent would become ambivalent in the community and self-sabotage by taking substances which would precipitate a high risk situation. Dr Aboud’s view was that when Mr Jackway is de-stabilised by using drugs and alcohol his paedophilic drive, which is laden with anger, comes to the fore. Such a scenario is particularly concerning given the evidence that Mr Jackway’s personality structure was such that he was prone to lying or at least omitting information when questioned. That means that such a high risk situation could escalate rapidly without detection given he does not disclose such feelings and the difficulty of detecting drug use, particularly a bender, at the precise time it occurs.
Dr Timmins is also of the view that any difficulties the respondent faces in the community which result in a negative emotional state are likely to trigger thoughts of retaliation, violence and substance use. Her concern is that if he acts on those thoughts in such a situation he loses the ability to control the situation through problem solving. Dr Timmins did not consider such a situation would occur immediately on release but that it was something that was likely to occur over time. The difficulty however is the fact that such an escalation might not be detected given what Dr Timmins terms as “positive impression management” whereby the respondent controls the information he reveals by omitting any incident which would reflect badly on him. In this regard it is clear that Dr Timmins is concerned that a high risk situation could in fact escalate without detection and that the consequences would be dire.
Another issue is the concern raised by both psychiatrists about the level of Mr Jackway’s current drug use in custody, given his statement on the 4 October 2019 to a corrections officer that he uses Suboxone all the time. If he is using heavily then he will clearly seek out these drugs either through legitimate means by access to the Buprenorphine program or by illicit means. If he is not able to obtain the drugs for pain relief or if his needs are not met in a timely way he will become deeply stressed as he has in the past. I recognise that the respondent’s desire or need for these substances does not of itself elevate the relevant risk but as Dr Aboud stated, it is what “it symbolises right now in terms of his tendency to use something illicitly, to break rules and to manage his problems maladaptively.”
Having considered all the reports and evidence which has been placed before me for the purposes of the review it would seem clear to me that the only available inference on the current evidence is that Mr Jackway will face considerable difficulties should he be released on a supervision order into the community. He has not lived in the community for any length of time in the last 27 years. Normal tasks such as shopping, cooking, banking and negotiating public transport will present some challenges for him as will negotiating with Centrelink and other government bodies. Currently, he has no real support in the community. He has some contact with his mother and older sister and whilst his mother has indicated she will move to support him that is not guaranteed. As he has put forward no other accommodation options, he would have to reside, at least initially, at the Wacol precinct. The precinct will also be a significant stressor for him as he considers many of the occupants of the precinct to be ‘dirt’ and he has been in conflict situations in the past with many of them. Furthermore, boredom will be a very real issue for him as he has no desire to work and no real interests. His capacity to work and indeed exercise is limited by his previous back injuries.
Counsel for Mr Jackway argues however that despite those issues Mr Jackway should be released into the community on a supervision order. Counsel argues that Mr Jackway’s comments in relation to possible drug use in the community need to be put into their proper context and that his reference to being desirous of going on the Buprenorphine program were to hold him in better stead to avoid illicit substances in the community. Counsel also argued that the respondent’s behaviour and emotional control had in fact improved significantly despite the outburst on 13 June 2019. Counsel also argued that one of the greatest challenges Mr Jackway faces is that his institutionalisation affects his life skills and how he reacts in challenging situations. This difficulty, it is argued, is best addressed in a community setting.
Can the proposed conditions of the supervision order manage the current risks?
The expert evidence of Drs Aboud and Timmins, which I accept, does not support release under a supervision order at this point in time. Having considered all the current evidence, I cannot positively conclude that a supervision order will provide adequate protection to the community.
On the basis of the evidence presented before me and in particular the lack of evidence sufficient to show that the respondent, with his anti-social personality disorder, has demonstrated a reasonable ability to control himself, I am satisfied that the applicant has shown that the adequate protection of the community cannot be reasonably and practically managed by a supervision order. Whilst I accept the respondent’s personality disorder is settling with maturation, treatment and medication, it is not yet settled to the point where the protection of the community from the risk the respondent will commit a serious sexual offence is adequately ensured by the terms of the supervision order.
I affirm the decision O’Brien AJ made on 28 February 2012 that the respondent is a serious danger to the community in the absence of a Division 3 order and I order that the respondent continue to be subject to a continuing detention order made by O’Brien AJ.
 This judgment refers to Mr Jackway and the respondent interchangeably.
 Applicant’s Amended Outline of Submissions at .
  QCA 153 at .
 T 1-9, ll 43-44.
 T 1-10, ll 35-36.
 T 1-11, l 3.
 CFI 168, Psychological Progress Report of Dr Lars Madsen dated 19 September [88-98].
 CFI 168, Psychological Progress Report of Dr Lars Madsen dated 19 September at [123-126].
 T 1-47 ll 25-33.
 Attorney-General v Jackway  QSC 67 at -.
 CFI 157, Supplementary Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 17 June 2019, p 8.
 CFI 157, Supplementary Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 17 June 2019, p 17.
 CFI 157, Supplementary Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 17 June 2019, p 20.
 At p 21.
 CFI 167, Addendum Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 13 September 2019, p 3.
 CFI 167, Addendum Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 13 September 2019, p 3.
 At p 4.
 CFI 167, Addendum Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 13 September 2019, p 5.
 At p 5.
 T 1-14, l 43.
 T 1-14, l 46 – 1-15, l 26.
 T 1-16, ll 27-34.
 T 1-17, ll 8-10.
 T 1-17, l 28.
 CFI 164, Supplementary Psychiatric Risk Assessment Report of Dr Evelyn Timmins dated 29 August 2019, p 8.
 CFI 164, Supplementary Psychiatric Risk Assessment Report of Dr Evelyn Timmins dated 29 August 2019, at p 9.
 At p 10.
 At p 10.
 CFI 164, Supplementary Psychiatric Risk Assessment Report of Dr Evelyn Timmins dated 29 August 2019, p 12.
 At p 13.
 CFI 164, Supplementary Psychiatric Risk Assessment Report of Dr Evelyn Timmins dated 29 August 2019, p 13, 568.
 At p 14, 570-571.
 At p 14, 571-573.
 At p 14, 615-628.
 T 1-50 ll 33-38.
 T 1-50, ll 44-47.
 T 1-51 ll 7-8.
 T 1-51 ll 8-39.
 T 1-57 l 44 – 1-58 l 14.
 T 1-58 ll 27-29.
 CFI 169, Affidavit of Jolene Monson sworn 2 October 2019 at .
 CFI 169, Affidavit of Jolene Monson sworn 2 October 2019 at .
 High Risk Offender Management Unit, Case Notes from interview with Douglas Jackway, 4 October 2019 tendered at the hearing and marked Exhibit 1.
 Turnbull v Attorney General for the State of Qld  QCA 54 at .
 CFI 164, Supplementary Psychiatric Risk Assessment Report of Dr Evelyn Timmins dated 29 August 2019 at p 5, ll 172-176.
 CFI 167, Addendum Psychiatric Risk Assessment Report of Dr Andrew Aboud dated 13 September 2019, p 5.
 T 1-42 ll 39-45
 T 1-40 ll 25-26.
- Published Case Name:
Attorney-General for the State of Queensland v Jackway
- Shortened Case Name:
Attorney-General v Jackway
 QSC 261
22 Oct 2019
|Event||Citation or File||Date||Notes|
|Primary Judgment|| QSC 261||22 Oct 2019||Review of continuing detention order made under the Dangerous Prisoners (Sexual Offenders) Act 2003; respondent affirmed to be a serious danger to the community in the absence of an order pursuant to Division 3 of the Dangerous Prisoners (Sexual Offenders) Act 2003 (Qld); respondent continue to be subject to the continuing detention order made 28 February 2012: Lyons SJA.|